HABEAS CORPUS. 



485 



been suppressed by order of Brig.-Gen. Hascall, 

 the South Bend "Forum" and the Columbia 

 City " News." 



From this it will be seen that the suppression 

 of the public press kept pace with the military 

 arrests. 



Immediately following, the Hon. Nat. Wolfe, 

 who was the Democratic candidate in the 

 Louisville District, Ky., was arrested and put 

 in confinement in consequence, as charged, of 

 having uttered disloyal sentiments on the 

 stump. He was kept under arrest until after 

 the election. 



On June 3d, Gen. Burnside issued General 

 Order No. 90, from which the following ex- 

 tracts are made : 



General Order No. 90. 

 HEADQUARTERS DEPARTMENT OF THE OHIO, ) 

 CINCINNATI, OHIO, June 3, 1863. f 



The general commanding directs that Gen. N. C. 

 McLean, provost-marshal general, at once institute an 

 investigation into the cases of all citizen prisoners 

 now confined in this department, and in all such 

 cases as do not clearly show premeditated disloyalty 

 on the part of the accused, or when a desire is mani- 

 fested to atone for past faults by future good conduct, 

 the prisoners will be released on taking the oath of 

 allegiance and giving bonds for a strict observance 

 thereof. The general commanding is convinced that 

 a large majority of the men arrested have been mis- 

 led by dishonest and designing politicians, and he 

 prefers to strike at the sources of the evil, and allow 

 those who have been led astray to return to their loy- 

 alty and allegiance, if they have seen the folly and sin 

 of opposing the Government. * * * 



The general commanding desires to again call the 

 attention of all officers, provost marshals, and others 

 in authority, to the necessity of great care in the 

 making of arrests, which should in all instances be 

 founded on full affidavits, sustaining distinct charges, 

 except when the exigencies of the case demand in- 

 stant action. Carelessness in this respect is only less 

 censurable than negligence in the detection and pun- 

 ishment of crime. 



With the exercise of scrupulous care and sound dis- 

 cretion on the part of officers, and a candid consider- 

 ation on the part of all citizens, of the relations of the 

 people and the army to each other, as above set forth, 

 the general commanding is full of hope that mutual 

 cooperation in putting down the rebellion will be- 

 come more hearty and effective, the necessity for ar- 

 rests will be diminished, and the tendency to factious 

 opposition to the Government, and hurtful criticism 

 of its measures, be removed. 



By command of Major-Gen. A. E. BURNSIDE. 



LEWIS RICHMOND, A. A. G. 



Official: W. P. ANDERSON, A. A. G. 



On the 1st of July the Provost-Marshal Gen- 

 eral issued the following directions in reference 

 to the duties of office:;s, to whom writs of 

 habeas corpus might be directed to produce 

 persons charged as deserters : 



Circular No. 36. 



WAR DEPARTMENT, | 



PROVOST MARSHAL GENERAL'S OFFICE, v 

 WASHINGTON, D. C., July 1, 1863. \ 

 The following opinion of Hon. William Whiting, 

 Solicitor of the War Department, is published for the 

 information and guidance of all officers of this Bu- 

 reau: 



ARREST OP DESERTERS HABEAS CORPUS. 



Opinion. It is enacted in the Yth section of the 

 Act approved March 3d, 1863, entitled "An act for 



enrolling and calling out the national forces, and for 

 other purposes," that it shall be the duty of the Pro- 

 vost Marshals appointed under this act, "to arrest 

 all deserters, whether regulars, volunteers, militia- 

 men, or persons called into the service under this or 

 any other Act of Congress, wherever they may be 

 found, and to send them to the nearest military com- 

 mander or military post." 



If a writ of habeas corpus shall be issued by a State 

 Court and served upon a Provost Marshal while he 

 holds under arrest a deserter, before he has had oppor- 

 tunity "to send him to the nearest military command- 

 er or military post," the Provost Marshal is not at lib- 

 erty to disregard that process. It is the duty of the 

 Marshal, or other person having custody of the pris- 

 oner, to make known to the Judge or court by a 

 proper return, the authority by which he holds him 

 in custody. But after this return is made, and the 

 State Judge or Court judicially apprised that the 

 party is in custody under the authority of the United 

 States, they can proceed no further. 



They then know that the prisoner is within the do- 

 minion and jurisdiction of another Government, and 

 that neither the writ of habeas corpus, nor any other 

 process issued under State authority, can pass over 

 the line of division between the two sovereignties. 

 He is then within the dominion and exclusive juris- 

 diction of the United States. If he has committed 

 an offence against their laws, their tribunals alone 

 can punish him. If he is wrongfully imprisoned, 

 their judicial tribunals can release him and afford 

 him redress. And although, as we have said, it is 

 the duty of the Marshal, or other person holding him, 

 to make known, by a proper return, the authority 

 under which he retains him, it is, at the same time, 

 imperatively his duty .to obey the process of the Uni- 

 ted States, to hold the prisoner in custody under it, 

 and to refuse obedience to the mandate or process of 

 any other Government. And, consequently, it is his 

 duty not to take the prisoner, nor suffer him to be 

 taken, before a State Judge or Court upon a habeas 

 corpus issued under State authority. 



No State Judge or Court, after, they are judicially 

 informed that the party is imprisoned under the au- 

 thority of the United States, nas any right to inter- 

 fere with him, or require him to be brought before 

 them. And if the authority of a State, in the form 

 of judicial process or otherwise, should attempt to 

 control the Marshal or other authorized officer or 

 agent of the United States, in any respect, in the 

 custody of his prisoner, it would be his duty to resist 

 it and to call to his aid any force that might be ne- 

 cessary to maintain the authority of law against ille- 

 gal interference. "No judicial process, whatever 

 form it may assume, can have any lawful authority 

 outside of the limits of the jurisdiction of the Court 

 or Judge by whom it is issued ; and an attempt to 

 enforce it beyond these boundaries is nothing less 

 than lawless violence." The language above cited 

 is that of Chief Justice Taney, in the decision of the 

 Supreme Court of the United States, in the case of 

 Ableman m. Booth, 21 Howard's Reports. 



If a writ of habeas corpus shall have been issued out 

 from a State Court, and served upon the Provost 

 Marshal while he holds the deserter under arrest, and 

 before he has had time or opportunity to " send him 

 to the nearest military commander or military post," 

 it is the duty of the Marshal to make to the Court a 

 respectful statement, in writing, as a return upon the 

 writ, setting forth : 



1st. That the respondent is Provost Marshal, duly 

 appointed by the President of the United States, in 

 accordance with the act aforesaid. 



2d. That the person held was arrested by said 

 Marshal as a deserter, in accordance with the pro- 

 vision of the seventh section of the act aforesaid. 

 That it is the duty of the respondent to deliver over 

 said deserter "to the nearest military commander or 

 military post," and that the respondent intends to 

 perform such duty as soon as possible. 



